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Friday, April 10, 2009

President Obama: Where Are The Checks And Balances?

I need to start out by making very clear that I do not regret being one of the people who worked to get Barack Obama elected. As disappointed as I am, a McCain-Palin victory would have brought our country to its knees. There was no way irresponsible Republican rule could continue. Unless you were one of the 1 or 2% who would be reaping the benefits.

Having said that, my disillusionment with President Obama grows by the day.

The most recent revelations, are the most disconcerting to me. They concern the illegal wiretapping that began with the Bush administration, and the advocacy of the 'state secrets' privilege, which Obama specifically campaigned against.

Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.

So, what are they now doing? Not reversing that policy, that's for sure. In fact, they are not even seeking to merely maintain the Bush wiretapping policy, which offered no accountability. No, the Obama administration is actually seeking to expand upon it.

This time the issue was the National Security Agency's warrantless wiretapping program, and whether courts would be able to assess its constitutionality in a case called Jewel v. NSA, where the Electronic Frontier Foundation (EFF) is challenging the NSA surveillance by suing on behalf of AT&T customers whose records may or may not have been caught up in the NSA "dragnet."

Last Friday, while President Obama traversed throughout Europe, his Justice Department sought to have Jewel v. NSA dismissed because "the Court lacks subject matter jurisdiction with respect to plaintiffs’ statutory claims against the United States because Congress has not waived sovereign immunity" and "because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege and related statutory privileges."

Argued the Justice Department: Director of National Intelligence Dennis Blair "has once again demonstrated that the disclosure of the information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security."

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."

No kidding. The story goes on:

In a 2006 lawsuit, the AT&T plaintiffs accused the company of allowing the National Security Agency to intercept calls and e-mails and inspect records of millions of customers without warrants or evidence of wrongdoing.

The suit followed President George W. Bush's acknowledgement in 2005 that he had secretly authorized the NSA in 2001 to monitor messages between U.S. residents and suspected foreign terrorists without seeking court approval, as required by a 1978 law.

Congress passed a new law last summer permitting the surveillance after Bush allowed some court supervision, the extent of which has not been made public. The law also sought to grant immunity to AT&T and other telecommunications companies from suits by customers accusing them of helping the government spy on them.

Nearly 40 such suits from around the nation, all filed after Bush's 2005 disclosure, have been transferred to San Francisco and are pending before Chief U.S. District Judge Vaughn Walker. He is now reviewing a constitutional challenge to last year's immunity law, which the Obama administration is defending.

This is simply unfathomable to me.

The Talking Points Memo website has been especially good about pursuing this story. Aside from taking the word of pundits, they did their own investigating. Zachary Roth's recent post on the subject last night begins as follows:

Is the Obama administration mimicking its predecessor on issues of secrecy and the war on terror?

During the presidential campaign, Obama criticized Bush for being too quick to invoke the state secrets claim. But last Friday, his Justice Department filed a motion in a warrantless wiretapping lawsuit, brought by the digital-rights group EFF. And the Obama-ites took a page out of the Bush DOJ's playbook by demanding that the suit, Jewel v. NSA, be dismissed entirely under the state secrets privilege, arguing that allowing it go forward would jeopardize national security.

Coming on the heels of the two other recent cases in which the new administration has asserted the state secrets privilege, the motion sparked outrage among civil libertarians and many progressive commentators. Salon's Glenn Greenwald wrote that the move "demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used." MSNBC's Keith Olbermann called it "deja vu all over again". An online petition -- "Tell Obama: Stop blocking court review of illegal wiretapping" -- soon appeared.

Not having Greenwald's training in constitutional law (and perhaps lacking Olbermann's all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration's position on the case. Does it represent a continuation of the Bushies' obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?

In a word, yes.

The problem is that Obama's justice department isn't merely arguing for records that allegedly compromise national security to be sealed from public view. They are also arguing against judicial review, which in no way compromises national security.

If the administration has its way, a president could invoke a state secrets privilege and never have to answer for its actions. And we would have no way of knowing if there was validity for invoking the privilege in the first place.

As Dan Froomkin astutely pointed out yesterday, in his Washington Post blog:

There are two things you really need to know about the "state secrets" privilege.

The first is that the government lied in the 1953 Supreme Court case that established the government's right not to disclose to the judicial branch information that would compromise national security. The widows of three civilian engineers who died in a military airplane crash sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence.

The second thing is that the way the state secrets privilege has typically worked since then is that the government can refuse to publicly disclose a specific item of information if it explains why to the judge. The idea is not that government officials get to tell a judge to dismiss an entire case because they don't want to answer any questions at all.

But it is precisely such a sweeping assertion that the Justice Department -- the Obama Justice Department -- is making in three cases that relate to torture and warrantless wiretapping.

There is something utterly un-American about saying that the executive branch can simply tell the judicial branch to butt out of a matter for national security reasons -- and there's no recourse.

I fully concur with that statement. An executive branch that does not have to submit to checks-and-balances is not transparent. It also opens the door to abuse of power. As I complained during the Bush regime, if a president can claim absolute power, without fear of government oversight, there is nothing to stop those in power from doing harm to their political enemines. THAT is why we have checks-and-balances. THAT is why there needs to be some judicial or congressional oversight. The president is not a king. Or a dictator.

Add to this my disgust over Lawrence Summers and the insiders running finance (which I will save for another post, but click here for a great piece from Matt Taibbi), and I am getting fully disgusted with our 2-party system.

I am not upset with everything the president does. For one, he certainly seems to have changed us from global confrontationalists into a country more concerned with seeking cooperation and consensus.

His decision to overturn the Bush ban on expanding embyronic stem cell research and re-establish funding for international organizations that assist in family planning is a reflection of the man I voted for.

But Keith Olbermann made a comment on his show the other night which pretty much represents how I feel. Essentially, Keith said we can't really rely any more about what President Obama says he will do. We need to judge him by the actions he takes.

Because of his many reversals since taking office, I no longer will believe what I hear until I see how the man follows through.

As angry as I have gotten recently, a world ruled by John McCain and Sarah Palin would have been the final nail in our coffin. It would have been depressing beyond belief. Obama, with all his faults, is head-and-shoulders above what we had. McCain-Palin managed to sink below even that level.

However, Obama is not getting a free pass from me when he, and his administration, pursue policies that I feel are dangerous to our country.

Seeking to eliminate checks-and-balances, in any form, is un-American. Mr. Froomkin was exactly right about that.

And I will call President Obama out on it every time.

Unlike the right-wing of this country that always cover for their own, those of us on the left actually hold our leaders accountable for their actions.